The creation of any company is preceded by the choice of legal form entrepreneurial activity. Further, constituent documents are created - the charter and the memorandum of association, which fix the name of the company, the organizational and legal form of the enterprise, determine the goals, objectives and activities of the enterprise, and also determine the procedure for managing the company and the relationship of the founders.
Constituent documents are registered by local executive authorities. After state registration, the company must register with tax office, open a bank account, will receive a seal, letterhead, stamp and other attributes. After that, the firm can be included in the business system.
There are the following organizational and legal forms entrepreneurial activity:
sole (individual) firms, where the economic entity is an individual (entrepreneur);
business partnerships (general partnership, limited partnership);
business companies (limited liability companies, additional liability companies, joint-stock companies);
unitary enterprises;
production cooperatives (artels).
Individual enterprise - This small firm, the owner and main employee of which is a citizen (individual) who has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur. The property of an individual enterprise is formed from the property of the citizen who registered it, as well as from income received and other legal sources.
Business partnerships and companies- these are commercial organizations, the authorized capital of which is divided into shares (contributions) of the founders.
General partnership - this is an organization whose participants, in accordance with the agreements concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.
The property is formed at the expense of the contributions of actual participants, income received in the course of entrepreneurial activity and other legal sources, and belongs to the participants on the basis of the right of common shared ownership.
Participants bear unlimited liability for the obligations of the partnership and jointly and severally with all their property.
The management of the activities of a general partnership is carried out by common agreement of all participants (general meeting).
The contribution (share) of any of the participants in the company may be transferred to another person only with the consent of the company.
Partnership on faith(limited partnership) is an organization whose participants carry out economic activities on the basis of mutual trust, i.e. when choosing this organizational and legal form, strict legal registration of relations between the participants is not required.
The participants of a limited partnership are active participants and contributors.
The property is formed at the expense of the participants' contributions, income received and other legal sources, and belongs to the participants on the basis of the right of common shared ownership.
Active participants are fully jointly and severally liable for the obligations of the partnership with all their property, and participants-contributors are liable within the limits of their contribution to the property of the partnership and do not take part in the activities of the partnership.
The activity of the partnership is managed by the active participants.
Limited Liability Company(LLC) is an organization founded by one or more persons. The authorized capital of the company is divided into shares, the amount of which is determined by the founding documents. The company's property is formed at the expense of the participants' contributions and income received and belongs to the participants on the basis of the right of shared ownership.
Members of a limited liability company are liable for its obligations only within the limits of their contribution.
The contribution (share) of LLC participants may be transferred to other persons only with the consent of the company.
Management of the activities of a limited liability company is carried out general meeting founders.
Additional Liability Company is an organization established by one or more persons, the authorized capital of the company is divided into shares. The size of these shares is determined by the founding documents.
The participants in such a society are liable for its obligations with their property in the same multiple size for all, in relation to their contributions.
Joint-stock company(JSC) is an organization whose authorized capital is divided into a certain number of shares.
Participants (shareholders) bear responsibility for the obligations of JSCs within the limits of the block of shares they own.
Shares of participants in a joint-stock company may be transferred to third parties without the consent of other shareholders.
The joint-stock company is managed by a meeting of shareholders.
Joint-stock companies are open and closed.
open joint-stock company(OJSC) is a company whose property is formed through the sale of shares by open subscription, the number of participants in the OJSC should be more than 50 people, and the size of the authorized capital should be more than 1000 times the minimum wage.
In a closed joint-stock company (CJSC), shares are distributed only among the founders or other predetermined circle of persons. The number of people in the CJSC is less than 50, the size of the authorized capital is less than 1000 times the minimum wage.
Production cooperatives are associations of citizens for joint production activities based on their personal labor participation and the association of property shares by their participants.
Unitary enterprises- These are commercial enterprises that are not endowed with the right of ownership to the property assigned to them by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among the employees of the enterprise.
Only state and municipal enterprises can be created in the form of a unitary enterprise.
The property of state or municipal enterprises is, respectively, in state or municipal ownership and belongs to such enterprises on the right of command or operational management.
Business associations
Enterprises and organizations can form associations, concerns, foundations, etc. on a contractual basis in order to expand opportunities in industrial, scientific, technical and social development. These associations are non-profit organizations those. organizations that do not aim to make a profit. They can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created.
The enterprises that are part of the association retain their independence and rights legal entities.
The governing bodies of the association perform their managerial functions on the basis of agreements with enterprises. The association operates on the basis of the charter and voluntary entry of enterprises.
Consortium- this is a temporary voluntary association of enterprises to solve specific problems - the implementation of large targeted programs and projects, including scientific, technical, construction, etc.
Upon completion of the assigned task, the consortium may terminate its activities or, by agreement of the participants, be reorganized for another type of activity.
Consortium members retain their economic independence and may take part in the activities of other consortiums and associations.
To manage the activities of the consortium, a governing body is created, which usually includes representatives of the founding enterprises.
Concern- this is an association of enterprises that carries out joint activities on the basis of voluntary centralization of the functions of scientific, technical and industrial development, investment, financial and other activities. In order to carry out joint activities, the concern creates its own management bodies, to which the participants, in accordance with the charter, voluntarily transfer part of their powers. Members of a concern cannot simultaneously be members of other concerns.
Association is a voluntary association of enterprises and organizations for the purpose of carrying out joint activities on the basis of self-financing and self-government. The association is managed by the general meeting of the association members, the council or the board and the executive directorate.
Fund- organizational form associations Money or other resources at the disposal of the state, enterprises, associations of enterprises for special purpose use.
The fund is managed by the general meeting of the founders of the fund - enterprises, the state, and individuals.
Entrepreneurial activity - a set of organizational and property differences, ways of creating a material base, differences in the interaction and responsibility of the founders, owners, participants.
What organizational legal forms business activities exist?
Consider commercial organizational and legal forms of entrepreneurial activity.
Business partnerships. There are two types: general partnership and faith partnership.
A general partnership is understood as an organization of a commercial orientation, the participants of which carry out economic activities on behalf of the enterprise and are liable with all their property for their obligations.
A limited partnership is an organization of a commercial orientation, in which, in addition to general partners, there are investors who do not carry out actions to manage the organization, are not liable for obligations, and their risk is limited to the amount of the contribution.
Economic companies. They are subdivided into LLC, ALC and JSC (CJSC and JSC).
LLC is a company created by one person or several, in which the authorized capital consists, in accordance with the constituent documents, of shares, the participants of which are not liable for the obligations of the organization and risk within the value of the contributions.
ALC - participants of the organization bear additional responsibility for the obligations of the enterprise with their property, for all in an equal amount, which is a multiple of the value of the contribution.
JSC - a legal entity in which the authorized capital is divided into shares, the shareholders themselves are not liable for the obligations that the enterprise has, and risk the value of their shares. If a shareholder can alienate his shares without the consent of others, then the company is open, otherwise it is closed.
An association of individuals on the basis of voluntary membership for the purpose of joint production or economic activity, bearing additional responsibility in accordance with the charter, which is based on the personal labor of each and the association of share contributions.
Allocateorganizational and economic forms of entrepreneurial activity.
1) Cartel - an agreement between entrepreneurs of the same industry on the cost of products, the division of sales markets, etc.
2) Syndicate - the creation by entrepreneurs of one industry of a common sale of products to eliminate competition.
3) Consortium - an association of persons engaged in entrepreneurial economic activity to carry out any serious financial transaction in order to reduce risk and increase capital.
4) Concern - JSC, which is diversified and exercises control over the organization through a system of participation.
Entrepreneurial activity- this is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons duly registered in this capacity.
Entrepreneurial activity can be carried out by citizens registered as individual entrepreneurs (IP).
State registration of an individual entrepreneur is an act of an authorized federal executive body (MNS of the Russian Federation), carried out by entering into the Unified State Register of Individual Entrepreneurs information on the acquisition by an individual of the status of an individual entrepreneur or on the termination of entrepreneurial activity, as well as other information about an individual entrepreneur. State registration is carried out by the registering body (Ministry of Taxes of the Russian Federation) at the place of residence of a citizen on the basis of his application and the documents listed below, and is carried out in the manner and within the time limits in force for legal entities. The registering authority, within a period of not more than 5 working days from the moment of state registration, also submits to state off-budget funds(PF RF, FSS RF, MHIF RF) information contained in the Register for registration of an individual entrepreneur as an insurer in each of these funds.
Information about the place of residence is provided by the registration authority only upon request submitted by a person who has presented an identity document (an individual entrepreneur has the right to request from this authority information about persons who have received information about his place of residence).
legal entity recognized as an organization that:
- has separate property (in ownership, economic management, operational management);
- is liable with this property for its obligations;
- may, on its own behalf, acquire property and personal non-property rights, bear obligations;
- can be a plaintiff and a defendant in court, arbitration, arbitration courts.
Commercial organizations pursue profit as the main goal of their activities. Must have a brand name.
Not commercial organizations do not have the main purpose of their activities to make a profit and do not distribute the profits received among the participants (founders). They can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created.
Russian enterprises can operate within a wide range of organizational and legal forms. The legislation of the Russian Federation enables citizens to do business in statuses optimized for the specifics of production, turnover, the number of co-founders and the need for additional funding. What are the features of organizational and legal forms of doing business in Russia? How to choose the best format for doing business?
Classification of organizational and legal forms
Russian entrepreneurs often face the problem of choosing the optimal organizational and legal form of doing business. What options do they typically explore? There are few of them. Organizational and legal forms of activity of enterprises, which are provided for by Russian legislation, may include:
- activities as an individual entrepreneur (IP);
- business in the form of an LLC;
- activities in the format of a joint-stock company;
- joint cooperation in the form of cooperatives, peasant farms, partnerships.
It can be noted that in rare cases it is permissible to conduct business also in the status of an individual without registering as an individual entrepreneur. But even if there were more opportunities for this, such activities, as a rule, are less beneficial for the entrepreneur in terms of taxation. Therefore, the organizational and legal forms of entrepreneurial activity that we have listed above are more preferable. Let us consider in more detail the essence of each of them.
IP
The organizational and legal form of doing business is quite popular among entrepreneurs of the Russian Federation - IP. The prevalence of this option is mainly due to the simplicity of state registration. In order to become an entrepreneur, a citizen must collect quite a few documents. The costs associated with registering as an individual entrepreneur are also small. It is not necessary to have a seal. There are no legal requirements to open a bank account (although it is, of course, recommended to do this for the convenience of interacting with suppliers and customers).
The peculiarity of the considered form of doing business is that an individual entrepreneur is not a legal entity. In practice, this means, for example, that he is personally responsible for his obligations. However, individual entrepreneurs can pay taxes in regimes that are typical for legal entities.
One of the advantages of doing business as an individual entrepreneur is that a person, having paid tax under the chosen scheme, can subsequently dispose of the remaining amount at his own discretion. It is very easy, therefore, to withdraw the proceeds for personal use in order to spend in any desired way.
Another useful aspect of doing business in this status is the minimum burden on the individual entrepreneur in terms of reporting. Other organizational and legal forms of enterprises require regular interaction with the Federal Tax Service and other structures. For individual entrepreneurs, in some cases, it is enough to send a declaration to the tax service once a year, as well as several documents related to staffing and accounting issues.
Any citizen of the Russian Federation who is already 18 years old can run a business as an individual entrepreneur. Subject to the approval of the activity by the parents, Russians from the age of 14 can also engage in business. If a person is in the civil service, then, however, he is not entitled to register as an individual entrepreneur.
An individual entrepreneur can hire other people, arrange for them work books, pay salaries, form employees working experience. Individual entrepreneur always owns his business alone. You cannot give or sell your share in the enterprise to someone - this organizational and legal form does not allow you to do this. And that's why many Russian businessmen willingly engage in activities as IP.
However, working in this status has a number of disadvantages. For example, individual entrepreneurs must in any case pay fixed insurance premiums for themselves to the Pension Fund of the Russian Federation, the Social Insurance Fund and the Compulsory Health Insurance Fund. This is usually not a problem if the entrepreneur has a good turnover: the corresponding fees to the state treasury are counted as part of the taxes and therefore are not noticeable. But even with zero revenue, the IP must pay them. And if, for example, a person for some reason does not do business for some time, he is nevertheless obliged to transfer contributions to the treasury. Even if he is employed somewhere and the employing company transfers the required percentage from his salary to the Pension Fund, the Social Insurance Fund and the Compulsory Health Insurance Fund, this obligation remains.
Business in the form of LLC
Another organizational and legal form of business common in the Russian Federation is a limited liability company. It can be established by one citizen or several, but the number of participants should not exceed 50 people. An entrepreneur, owning an LLC, is not personally liable for obligations, unlike an individual entrepreneur (not counting contributions to the authorized capital). Also members of the society of this type are not required to pay contributions to the PFR, FSS and MHIF.
LLC is a full-fledged legal entity. Its state registration is somewhat more complicated than in the case of an individual entrepreneur. An authorized capital of at least 10 thousand rubles is required, in most cases a bank account, a seal. Reporting for LLC owners, as a rule, is more complicated than for individual entrepreneurs.
Another nuance is that you cannot just withdraw the proceeds, as in the case of an individual entrepreneur, even if tax has been paid on it. You will have to draw it up as dividends or even in the form of a salary (from which, in turn, it is necessary to transfer contributions to the Pension Fund, the Social Insurance Fund and the Compulsory Medical Insurance Fund).
LLC specifics
Such an organizational and legal form of a legal entity as an LLC is among the most common in the Russian Federation. Therefore, we will consider its specifics in more detail.
We noted above that the number of co-owners of an LLC cannot exceed 50 people. If you want to join the business more people, then it will be necessary to transform the LLC into other organizational and legal forms of entrepreneurship - a public or ordinary joint-stock company. If the co-founders do not carry out the appropriate procedure, the LLC may be liquidated by the court.
The authorized capital of an LLC, as we noted above, is 10 thousand rubles. Many companies, of course, increase it. But this must be done carefully. If the value of net assets, due to market or other reasons, turns out to be lower than the value of the authorized capital, then it will have to be reduced - these are the requirements of the law. And if the net assets turn out to be less than 10 thousand rubles, then the company must be (also by virtue of the provisions of the law) liquidated. LLC can be transformed into other organizational and legal forms of entrepreneurship.
It is possible for one of the co-founders to leave the organization by alienating their share in favor of other owners (with subsequent compensation), but only if this is provided for by the company's charter. It is also possible to sell the relevant part of the business. The considered organizational and legal form of a legal entity does not imply withdrawal from the sole founder, but in this case he can sell the business to another citizen or firm. In the event of a sale of a share in a company, the pre-emptive right to purchase belongs to other members of the company. The period during which it is valid is determined by the legislation and the charter of the organization.
Joint-stock company
Such an organizational and legal form of activity as a joint-stock company is mainly in demand by those entrepreneurs who plan to develop a big business. JSC is a commercial structure that also has authorized capital, but it is issued in the form of shares, which certify the binding nature of the rights of the participants in the company. Therefore pass state registration and reporting within a joint-stock company is somewhat more difficult than with an LLC, not to mention individual entrepreneurs.
JSC, according to Russian law, can be ordinary and public. It can be noted that until 2014 in Russia there were such organizational and legal forms of organizations as closed and open joint-stock companies. Then, amendments were made to the regulatory legislation, according to which joint-stock companies began to be classified into ordinary and public ones.
Public and ordinary JSCs
Such an organizational and legal form as a public joint stock company, according to the Civil Code of the Russian Federation, is characterized by the following features.
- First of all, shares and other securities that are issued by the organization are placed publicly (through open subscription), and are also circulated on the market in accordance with the provisions of legal acts regulating the circulation of relevant trading instruments.
- Secondly, the founders of a JSC have the right to prescribe a public status in the charter of the organization, as well as in its company name, even if its activities do not meet the first criterion.
Other JSCs are not public. That is, they are simply called societies. But if the plans of the leaders of the organization are to issue shares, which will then be in open subscription, then in the charter they should still designate the status of a public company.
The specifics of the statutes
The reforms in the civil legislation that took place in 2014 predetermined some features of the drafting of the charters of organizations. For example, two different organizational and legal forms of enterprises, LLC and JSC, may have uniform founding documents, since their only legal form was the charter, which can be developed according to the recommendations of state registration authorities.
LLC and JSC, according to the legislation of the Russian Federation, belong to the same category of organizations - business companies. In fact, the reform carried out in 2014, their status, as noted by some experts, has become very similar due to the establishment of a single form of constituent document.
Partnerships
The Civil Code of the Russian Federation provides for other types of organizational and legal forms of business. For example, partnership. What is the peculiarity of this format of entrepreneurial activity? The definition of partnerships and business entities (LLC and JSC) is contained in the same provisions of the Civil Code of the Russian Federation. That is, the considered organizational legal form of activity is a legal entity that has an authorized capital.
Partnerships are full and limited. In organizations of the first type, people are engaged in business and bear subsidiary responsibility for arising obligations. Limited partnerships (on faith) are organizations that include contributors (or limited partners) who are liable within the limits of their contributions.
Consumer cooperatives
The Civil Code of the Russian Federation provides for such a form of doing business as a consumer cooperative. Organizations of this type are voluntary associations of individuals or legal entities, within which property share contributions of participants are consolidated. How the corresponding amounts should be paid is determined by the charter of the consumer cooperative. Members of the organization bear subsidiary liability for arising obligations within the limits of the unpaid share of the additional contribution.
Production cooperatives
The organizational and legal forms of organizations provided for by the Civil Code of the Russian Federation include such structures as production cooperatives (also called artels). These are associations individuals(but the charter may also provide for the participation of legal entities) for the purpose of organizing joint production, processing or marketing various kinds products, performance of works, provision of services, conduct of trade. The personal labor participation of citizens is assumed. Members of a production cooperative, as a rule, agree on making share contributions. The responsibility of the participants of the organization is subsidiary, within the limits determined by the legislation and the charter.
Peasant farms
Organizational and legal forms of entrepreneurial activity can be associated with the agricultural industry. You can conduct business in this area through a variety of statuses. The Civil Code of the Russian Federation provides, in particular, the possibility for citizens of the Russian Federation to organize a joint peasant farm.
This type of joint activity of farmers involves the creation of a legal entity in the form of a voluntary association, based on - teamwork, as well as property contributions of participants. The peculiarity of the peasant economy is that all property within the framework of this organization is jointly owned by the farmers who established it. According to the Civil Code of the Russian Federation, a person can be a member of only one farm association. Citizens Leading joint activities within the framework of this organizational and legal form, bear subsidiary liability for arising obligations.
Choosing a form of doing business
What organizational and legal form can be optimal? If a person runs a business on his own, does not hire people, or forms a small staff of the company, then he can register as an individual entrepreneur. In this status, you can work with a minimum amount of reporting, without being distracted by bureaucracy and fully devoting time to work. There are no problems with the withdrawal of proceeds.
If a citizen conducts a joint business with partners, then the best option may be OOO. As soon as the company's turnover has grown, it would be nice to increase it further by issuing shares. In this case, you can pay attention to other types of organizational and legal forms of activity - a joint-stock company with securities by open subscription or a non-public JSC.
In order to effectively consolidate labor, entrepreneurs can unite in production or consumer cooperatives, partnerships. If citizens are engaged in farming activities, then the joint establishment of a peasant economy may well be optimal for them.
These are the main types of businesses provided for by the legislation of the Russian Federation. Other organizational and legal forms of organizational activity also allow doing business, such as, for example, associations or NGOs. It is not forbidden to make a profit for state organizations. However, taxation in the event that organizational and legal forms of organizational activity are involved, as a rule, is higher than when registering a legal entity, the status of which is more typical for business.
The organizational and legal form of entrepreneurial activity is understood as a set of property and organizational differences, features of the interaction of owners, founders, participants, their responsibility to each other and counterparties, methods of forming the property base.
Property differences reflect on what form of ownership or on the basis of what real right the entrepreneur operates. If this is state property, then we are dealing with state enterprises, which are in federal ownership or property of subjects Russian Federation. If an enterprise bases its activities on the basis of municipal property, or if such property is predominant for it, we speak of a municipal enterprise.
The organizational and legal forms of business partnerships, business companies, cooperatives are characterized private form property.
In addition, property differences are manifested in the ratio of the rights to property of the participants (founders) and the organization itself. According to this criterion, three models of property relations are distinguished:
- participants (founders) of business partnerships, companies, cooperatives, transferring the property of the organization, lose the right of ownership to it. Legal entities themselves become the owners of property, including the contribution made by the founders, property acquired in the course of entrepreneurial activity.
Participants have obligation rights to receive income and dividends, a corporate right to participate in business management, the right to a liquidation quota;
- the founders of state and municipal enterprises and institutions remain the owners of the property assigned to such organizations. The enterprises and institutions themselves own, use, dispose of property on the basis of derivative rights in rem: economic management or operational management;
- in relation to public and religious organizations, charitable and other foundations, associations of legal entities, their founders do not have property rights at all - neither real nor liability.
Organizational differences are expressed in internal structure business management of the enterprise. So, in state and municipal enterprises, the manager is the head accepted under the contract.
In partnerships, the performance in turnover occurs at the will of one or more participants. In business companies, the will is expressed by the general meeting and specially formed, in accordance with the law and the charter, management bodies.
Features of the interaction between the owner and participants in different organizational and legal forms are manifested primarily in their different participation in the affairs of the enterprise. So, the owner of the state and municipal enterprise, defining the goals of the enterprise, does not interfere in the future in its operational activities. In a limited partnership, the management of activities is carried out by general partners, while the contributors are not entitled to participate in the management and conduct of the affairs of the partnership, to act on its behalf except by proxy.
Organizational and legal forms also differ in the construction of responsibility. Yes, in full partnership the participants jointly and severally bear subsidiary liability for the debts of the partnership with their personal property. In limited liability companies, the participants are not responsible to the creditors of the company, they only bear the risk of losses in the amount of their contribution. For debts, only the society itself is liable with the property belonging to it on the right of ownership. Subsidiary liability for the obligations of a state-owned enterprise shall be borne by the owner of its property.
So, we have listed and characterized the main features of the concept of "organizational-legal form". The current legislation distinguishes the following organizational and legal forms of entrepreneurial activity: business partnerships (general and limited), business companies (limited liability, with additional liability, joint-stock), production cooperatives, state and municipal unitary enterprises. The listed organizations under the legislation of the Russian Federation are commercial.
As already noted, in addition to commercial ones, the current legislation provides for the possibility of creating non-profit organizations. A non-profit organization is an organization that does not have as the main goal of its activity the extraction of profit and does not distribute the profit received among the participants.
The legal status of non-profit organizations is determined by the Civil Code, Federal Law No. 7-FZ of January 12, 1996 "On Non-Profit Organizations", Federal Law No. 82-FZ of May 19, 1995 "On Public Associations", etc.
Non-profit organizations act to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, meeting the spiritual and other non-material needs of citizens, protecting the rights, legitimate interests of citizens and organizations, resolving disputes and conflicts, providing legal assistance, as well as other purposes aimed at achieving public benefits.
Non-profit organizations can be created in the form of public and religious organizations (associations), non-profit partnerships, institutions, autonomous non-profit organizations, social, charitable and other foundations, associations and unions, as well as in other forms provided for by federal laws.
In the event that the law or the charter non-profit organization granted the right to engage in entrepreneurial activities that correspond to the goals for which this organization was created, the profit from such activities is not distributed among its participants, but is directed to achieve the statutory goals.
Commodity, stock exchanges, banks and non-bank credit organizations, investment institutions and other entities operating in economic circulation do not act as an independent organizational and legal form of entrepreneurial activity, but can take the forms provided for by the legislation on them. For example, in accordance with the Banking Law, a credit organization is formed on the basis of any form of ownership as a business entity.
It is not an independent legal form and a small enterprise. Small business entities are understood as commercial organizations of any organizational and legal forms that meet the criteria defined by the Federal Law of June 14, 1995 No. 88-FZ “On State Support for Small Business in the Russian Federation”.
